Understanding Federal Supremacy

NOTE: This is the fifth in a series of articles covering basic constitutional principles

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. – Article VI, Sec.2

The Supremacy Clause stands as one of the most misunderstood and abused provisions in the Constitution.

Most lawyers, academics and politicians read this to mean that the federal government does whatever it wants, and the people and the state governments unquestioningly submit. Thomas Jefferson disagreed.

The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government.

Absolute federal supremacists tend to completely ignore three key words in the Supremacy Clause – “In pursuance thereof.” The clause does not read, “This Constitution…and any old act Congress decides to pass…shall be the supreme law of the land.” Only acts within the scope of the federal government’s delegated powers rise to the status of supreme law. Acts outside of those powers constitute usurpation. They are, by definition, null, void and of no force.

If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed….But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.

The Constitution limits federal supremacy to those objects falling within the general government’s delegated powers and not one iota beyond them.

St. George Tucker wrote the first extended, systematic commentary of on the Constitution shortly after ratification. For nearly half a century, it was one of the primary sources for law students, lawyers, judges and statesmen. His commentary on the supremacy clause is worth considering.

It may seem extraordinary, that a people jealous of their liberty, and not insensible of the allurement of power, should have entrusted the federal government with such extensive authority as this article conveys: controlling not only the acts of their ordinary legislatures, but their very constitutions, also.

The most satisfactory answer seems to be, that the powers entrusted to the federal government being all positive, enumerated, defined, and limited to particular objects; and those objects such as relate more immediately to the intercourse with foreign nations, or the relation in respect to war or peace, in which we may stand with them; there can, in these respects, be little room for collision, or interference between “the states, whose jurisdiction may be regarded as confided to their own domestic concerns, and the United States, who have no right to interfere, or exercise a power in any case not delegated to them, or absolutely necessary to the execution of some delegated power.

That, as this control cannot possibly extend beyond those objects to which the federal government is competent, under the constitution, and under the declaration contained in the twelfth article (Tenth Amendment), so neither ought the laws, or even the constitution of any state to impede the operation of the federal government in any case within the limits of its constitutional powers. That a law limited to such objects as may be authorized by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void.

In the next installment of this series, we will examine who decides the extent of federal power in the constitutional system.